Opinion
Civil Action No. 02-2166-KHV
January 12, 2003.
MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff Burdett's Motion For Extension Of Time To Conduct Discovery To Respond To NCO's Motion For Partial Summary Judgment And For Relief Pursuant To Rule 56(g) (Doc. #38) filed December 3, 2002.
Procedural History
Plaintiff is the widow of Clarence Burdett, who committed suicide by asphyxiation on April 19, 2001. On April 12, 2002, plaintiff filed suit against nine defendants: Harrah's Kansas Casino Corporation; Harrah's Operating Company, Incorporated; Harrah's Entertainment, Incorporated; Edward T. Burke Associates, PC; Edward T. Burke, Esq.; Creditors Interexchange, Incorporated; NCO Financial Systems, Incorporated; Telecheck Systems, Incorporated; and Prairie Band Potawatomi Nation. Plaintiff alleges that defendants violated the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq.; the Racketeer Influenced Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961 et seq.; the Indian Reservation Gambling Act, 25 U.S.C. § 2701 et seq.; the Kansas Consumer Protection-Unconscionable Practice Act, K.S.A § 50-626 et seq., and committed intentional and negligent infliction of emotional distress resulting in the wrongful death of Clarence Burdett. Complaint For Damages, Declaratory Judgment, Injunction And Other Relief Arising From 1.) Violation Of Fair Debt Collection Practices Act[;] 2.) Racketeer Influenced Corrupt Organizations Act[;] 3.) Indian Reservation Gambling Act[;] 4.) Kansas Consumer Protection-Unconscionable Practice Act[;] 5.) Action To Set Aside Gambling Debts, To Enjoin Collection Thereof And To Recover Gambling Losses[;] 6.) Intentional And Negligent Infliction Of Emotional Distress Resulting In Wrongful Death (Doc. #1) filed April 12, 2002. In addition, plaintiff seeks to set aside Mr. Burdett's gambling debts, enjoin collection of those debts, and recover his gambling losses. Id.
On September 25, 2002, the Court granted an extension until October 10, 2002 for service of process on Harrah's Kansas Casino Corporation; Harrah's Operating Company, Incorporated; Harrah's Entertainment, Incorporated; Edward T. Burke Associates, PC; Edward T. Burke, Esq.; Creditors Interexchange, Incorporated; Telecheck Systems, Incorporated and Prairie Band Potawatomi Nation. Order (Doc. #10).
On December 18, 2002, Magistrate Judge James P. O'Hara entered the Scheduling Order (Doc. #45), which set the discovery deadline for June 13, 2003 and the dispositive motion deadline for August 1, 2003. On November 14, 2002, however, NCO Financial Systems ("NCO") filed a Motion For Partial Summary Judgment (Doc. #34). Plaintiff's response to that motion was due on December 8, 2002. In lieu of responding, plaintiff filed the instant motion, seeking an extension of time to conduct discovery to respond to NCO's motion for partial summary judgment, and expenses and attorney fees under Fed.R.Civ.P. 56(g). NCO did not respond to plaintiff's motion.
Extension Of Time To Conduct Discovery
Plaintiff asserts that before she can respond to NCO's motion for partial summary judgment she needs to cross examine Bill Rube, NCO's representative, whose affidavit has been filed in support of NCO's motion. See Exhibit A in Memorandum In Support Of Motion For Partial Summary Judgment (Doc. #35) filed November 14, 2002 ("NCO's Memorandum"). Plaintiff alleges that NCO has refused to produce Rube or any other witness in Kansas City and that NCO's lead counsel, David Israel, is unavailable until January 13, 2003. Plaintiff also contends that it will take at least one week to obtain the deposition transcript. The Court therefore grants plaintiff an extension, up to and including January 31, 2003, to file any opposition to NCO's motion for partial summary judgment.
Rule 56(g)
Plaintiff alleges that NCO filed Rube's affidavit and its motion for partial summary judgment in bad faith, and seeks relief under Fed.R.Civ.P. 56(g). Rule 56(g) provides:
Plaintiff also alleges that NCO has not produced documents (such as contracts between Telecheck and NCO and Harrah's, NCO collection notes and files regarding Mr. Burdett, and opinions as to the legality of gambling debt collection) which are necessary for plaintiff to respond to NCO's motion. Plaintiff has not filed a motion to compel production of the documents.
Should it appear to the satisfaction of the court at any time that any of the affidavits presented pursuant to this rule are presented in bad faith or solely for the purpose of delay, the court shall forthwith order the party employing them to pay to the other party the amount of the reasonable expense which the filing of the affidavits caused the other party to incur, including reasonable attorney's fees, and any offending party or attorney may be adjudged guilty of contempt.
Plaintiff asserts that the Rube affidavit was made in bad faith, that it has required the expenditure of substantial attorney time and expense, and that she will have to incur the expense of traveling to Philadelphia to depose Rube. Plaintiff asks the Court to hold NCO or Rube in contempt and order NCO to pay the expenses of travel, depositions and attorney's fees which plaintiff will incur in defending Rube's affidavit and NCO's motion.
Pursuant to D. Kan. Rule 7.4, "[i]f a respondent fails to file a response . . . the motion will be considered and decided as an uncontested motion, and ordinarily will be granted without further notice." See Hughes v. SSI, 2002 WL 922129, *1 (D.Kan. 2002). On this record, however, a finding of bad faith is unwarranted.
Few courts have granted relief under Rule 56(g). The rare instances in which sanctions have been imposed have been particularly egregious. See Alart Assocs., Inc. v. Aptaker, 402 F.2d 779 (2d Cir. 1968) (reasserting substantially same grounds for summary judgment after court had twice rejected theory); SMS Assocs. v. Clay, 868 F. Supp. 337, 334 (D.D.C. 1994) (after more than ten years of litigation, defendant engaged in questionable tactics, presented bad faith affidavits and made untrue representations under oath); Barticheck v. Fidelity Union Bank/First Nat. State, 680 F. Supp. 144 (D.N.J. 1988) (affiant inexplicably contradicted previous sworn testimony); Acrotube, Inc. v. J.K. Financial Group, Inc., 653 F. Supp. 470, 478 (N.D.Ga. 1987 (affidavit flatly at odds with facts indisputably within affiant's knowledge). If another explanation exists, however, courts generally do not find that the party employing the affidavit has acted in bad faith or solely for the purpose of delay. See Fort Hill Builders, Inc. v. Nat'l Grange Mut. Ins. Co., 866 F.2d 11 (1st Cir. 1989) (sanctions not appropriate when affidavits not false); Stewart v. RCA Corp., 790 F.2d 624 (7th Cir. 1986) (not bad faith when affidavit created factual issue for first time and counsel's inadequate preparation rather than client's bad faith was to blame); United Energy Corp. v. United States, 622 F. Supp. 43 (D. Cal. 1985) (failure to accurately recall events not bad faith); Instituto Per Lo Sviluppo Economico Dell'Italia Meridionale v. Sperti Prods., Inc., 323 F. Supp. 630 (D. N.Y. 1971) (misinformation included negligently rather than intentionally).
After reviewing NCO's motion and Rube's affidavit, the Court cannot conclude that Rube's affidavit has been presented in bad faith. Rube's affidavit asserts that as general manager of collections for NCO, he oversaw accounts assigned to NCO for collection, and he had "independent personal knowledge of the facts in [his] Affidavit." Rube Affidavit ¶ 2, Exhibit A in NCO's Memorandum (Doc. #35). It further outlines the following facts: On March 3, 2000, Telecheck Systems, Inc. placed an account with NCO (referenced as CRS #1072N6) with Mr. Burdett as the debtor. Id. ¶¶ 5-6. On March 4, 2000, NCO notified Mr. Burdett that he had 30 days to dispute the validity of the debt. Id. ¶ 11. Mr. Burdett did not dispute the validity of the debt, but on April 20, 2000, he contacted NCO and offered to settle it. Id. ¶ 13-14. Mr. Burdett paid the settlement amount and after NCO received his payment, it closed the account and returned the account to Telecheck Systems, Inc. Id. ¶ 16-17.
This account was in collection because several checks written by Mr. Burdett had been returned.
Plaintiff asserts that Rube's affidavit is false with regard to the timing and magnitude of NCO's involvement with Mr. Burdett on behalf of Harrah's Prairie Band Casino, and NCO filed the affidavit in bad faith in violation of Rule 56(g) to mislead and confuse the Court as to the quantum of predicate acts under RICO. Specifically, plaintiff alleges that the "factual assertion that a single account was placed by Telecheck on March 3, 2000 is false." Plaintiff's Motion (Doc. #38) ¶ 7. Indeed Rube only discusses account CRS #1072N6, but he does not claim that NCO had only one account for which Mr. Burdett was the debtor. The affidavit does not speak to some 25 other accounts which plaintiff claims that NCO had for Mr. Burdett. That fact, standing alone, does not mandate a conclusion that the affidavit is false or that NCO submitted it in bad faith. The Court therefore overrules plaintiff's motion for relief pursuant to Rule 56(g).
IT IS THEREFORE ORDERED that Plaintiff Burdett's Motion For Extension Of Time To Conduct Discovery To Respond To NCO's Motion For Partial Summary Judgment And For Relief Pursuant To Rule 56(g) (Doc. #38) filed December 3, 2002 be and hereby is SUSTAINED in part. On or before January 31, 2003, plaintiff shall file any opposition to NCO's Motion For Partial Summary Judgment (Doc. #34).
IT IS FURTHER ORDERED that plaintiff's motion for relief under Rule 56(g) be and hereby is OVERRULED.